Michael G. DeSombre v. James I. Boldebuck

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 26, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP2227 Cir. Ct. No. 2018CV2

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

MICHAEL G. DESOMBRE AND JIYOUNG C. DESOMBRE,

PLAINTIFFS-RESPONDENTS,

V.

JAMES I. BOLDEBUCK AND CHARITY A. BOLDEBUCK,

DEFENDANTS-APPELLANTS.

APPEAL from a judgment of the circuit court for Vilas County:
NEAL A. NIELSEN III, Judge. Reversed and cause remanded for further
proceedings.

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP2227

¶1 PER CURIAM. This case concerns a dispute regarding the
ownership of a pier and a “wet boathouse”—that is, a boathouse constructed
beyond the ordinary high water mark (OHWM) of a navigable waterway. 1
Michael and Jiyoung DeSombre sued their neighbors, James and Charity
Boldebuck, seeking a declaration that the DeSombres own a permanent pier and
wet boathouse extending into Otter Lake in Vilas County, as well as a declaration
that the pier and wet boathouse do not interfere with the Boldebucks’ riparian
rights. The circuit court granted summary judgment in favor of the DeSombres on
both of their claims.

¶2 We conclude the circuit court erred by granting the DeSombres
summary judgment because they failed to make a prima facie showing that the
pier and wet boathouse are not located at least partially within the Boldebucks’
riparian zone. At the very least, there are disputed issues of material fact
regarding the location of the pier and wet boathouse in relation to the parties’
respective riparian zones. We therefore reverse the court’s grant of summary
judgment in favor of the DeSombres and remand for further proceedings on their
claims.2

1
See Oneida Cty. v. Converse, 180 Wis. 2d 120, 122 n.3, 508 N.W.2d 416 (1993).
2
Given our determination that the circuit court erred by granting the DeSombres
summary judgment, we reject the DeSombres’ assertion that the Boldebucks’ appeal is frivolous.
We therefore deny the DeSombres’ motion for an award of attorney fees and costs under WIS.
STAT. RULE 809.25(3) (2017-18). All references to the Wisconsin Statutes are to the 2017-18
version unless otherwise noted.

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BACKGROUND

¶3 The DeSombres and the Boldebucks own neighboring properties on
Otter Lake in Vilas County. The western boundary line of the DeSombres’
property is the eastern boundary line of the Boldebucks’ property. Both properties
are part of Fred Morey’s Subdivision, the plat for which was recorded in 1910.

¶4 Prior to 2004, both the Boldebucks’ property—Lot 29—and the
DeSombres’ property—Lot 30—were owned by Jocelyn Blair. On October 11,
2004, Blair executed a warranty deed conveying Lot 30 to Jerome and Patricia
Connery. Although identified in the deed as Lot 30, the property was described
using a metes and bounds legal description. Below the legal description, the deed
contained the notation: “Including the right to continue to use and maintain the
existing boat house and pier located near the Northwest corner of this parcel.”

¶5 Just over two weeks later, on October 29, 2004, Blair executed a
warranty deed conveying Lot 29 to Jay Brentlinger. Again, although the deed
identified the property as Lot 29, it was described using a metes and bounds legal
description. Below the legal description, the deed stated: “Subject to the right of
the grantor, their heirs and assigns to continue to use and maintain the existing
boat house and pier located near the Northeast corner of this parcel, said grantor
owning adjoining lands to the East of this parcel.”3

3
The inclusion of this language in Brentlinger’s deed is perplexing, as Blair no longer
owned Lot 30—the adjoining property to the east of Lot 29—when she conveyed Lot 29 to
Brentlinger. Rather, as noted above, she had conveyed Lot 30 to the Connerys just over two
weeks earlier.

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No. 2018AP2227

¶6 On November 14, 2007, the Connerys sold Lot 30 to the
DeSombres. Again, the deed contained a metes and bounds legal description and
included the notation: “Including the right to continue to use and maintain the
existing boat house and pier located near the Northwest corner of this parcel.”
The Boldebucks purchased Lot 29 on June 12, 2012. Their deed included a metes
and bounds legal description and did not contain any reference to the pier or wet
boathouse. It is undisputed that according to the metes and bounds legal
descriptions contained in the parties’ deeds, which were taken from a survey
completed in 2003, the pier and wet boathouse extend into Otter Lake from the
DeSombres’ property.

¶7 At some point after the Boldebucks purchased their property, they
began using the pier and wet boathouse when the DeSombres were absent, without
the DeSombres’ consent. On June 25, 2016, the Boldebucks wrote to the
DeSombres asserting that they had a right to use the pier and wet boathouse
because those structures were located “substantially within [the Boldebucks’]
riparian zone.” The letter conceded that the DeSombres’ deed granted them a
“permissive right” to use and maintain the pier and boathouse, but it stated that
right was “concurrent with [the Boldebucks’] rights of ownership and use.”

¶8 The DeSombres subsequently commenced this lawsuit, which
asserted two claims against the Boldebucks. First, the DeSombres asked the
circuit court to declare that they were the sole owners of the pier and wet
boathouse, and that the Boldebucks did not have any ownership interest in those
structures. Second, they sought a declaration that the pier and boathouse did not
interfere with the Boldebucks’ riparian rights.

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No. 2018AP2227

¶9 The DeSombres ultimately moved for summary judgment, which the
circuit court granted. The court summarized its reasoning as follows:

The boathouse and pier are attached to the DeSombre
Parcel according to the legal descriptions and surveys under
which both parties took title. The DeSombres were
marketed a property containing a boathouse, specifically
contracted for it, and took title based on verification by
survey and legal description that the boathouse was theirs.
They have insured the boathouse for casualty and liability
as part of their homeowner’s policy since purchase, they
have been assessed and have paid taxes on the structure as
part of the improvements to their parcel since purchase.
They have spent money and been responsible for
maintenance of the pier and boathouse since purchase.
Real or personal, and however situated, the boathouse and
pier are the exclusive property of the DeSombres. The
Boldebucks have no basis to claim ownership of the
boathouse and pier, and no right to use based on any theory
they have advanced. Any encroachment of the structure
into the Boldebuck riparian zone under the facts of this case
does not constitute an actionable violation of riparian
rights. The situation was open and obvious to the
Boldebucks at the time of their purchase, a purchase they
elected to make despite the existence of the boathouse and
the pier, and without any basis to believe at the date of
purchase that they had any legal or equitable claim to its
ownership or use.

The Boldebucks now appeal the court’s summary judgment ruling.

DISCUSSION

I. Standard of review

¶10 We independently review a grant of summary judgment, using the
same methodology as the circuit court. Hardy v. Hoefferle, 2007 WI App 264, ¶6,
306 Wis. 2d 513, 743 N.W.2d 843. “Under that methodology, the court, trial or
appellate, first examines the pleadings to determine whether claims have been
stated and a material factual issue is presented.” Preloznik v. City of Madison,

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No. 2018AP2227

113 Wis. 2d 112, 116, 334 N.W.2d 580 (Ct. App. 1983). If so, we then examine
the moving party’s submissions to determine whether they establish a prima facie
case for summary judgment. Id. If the moving party has made a prima facie
showing, we examine the opposing party’s affidavits to determine whether a
genuine issue exists as to any material fact. Id.

¶11 Ultimately, summary judgment is appropriate where “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” WIS. STAT.
§ 802.08(2). “Summary judgment is a drastic remedy; therefore, the moving party
must clearly be entitled to judgment as a matter of law.” CED Props., LLC v. City
of Oshkosh, 2018 WI 24, ¶19, 380 Wis. 2d 399, 909 N.W.2d 136 (citation
omitted). Accordingly, when reviewing a grant of summary judgment, we view
the facts in the light most favorable to the nonmoving party, and we resolve any
doubts as to the existence of a genuine issue of material fact against the moving
party. Id.

II. Riparian rights

¶12 The DeSombres moved for summary judgment on their claims for a
declaration that: (1) they own the pier and wet boathouse; and (2) the pier and wet
boathouse do not interfere with the Boldebucks’ riparian rights. It is undisputed
that both the DeSombres and the Boldebucks are riparian owners of property on
Otter Lake. “Riparian owners are those who have title to the ownership of land on
the bank of a body of water.” ABKA Ltd. P’ship v. DNR, 2002 WI 106, ¶57, 255
Wis. 2d 486, 648 N.W.2d 854. A riparian owner is accorded certain rights based
upon his or her ownership of shoreline property. Id. As relevant to this case,

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No. 2018AP2227

those rights include the right to “construct a pier or similar structure in aid of
navigation.” Id. In addition, a riparian owner has the exclusive right to use any
such pier and may therefore “eject others” who attempt to use it. See Anchor
Point Condo. Owner’s Ass’n v. Fish Tale Props., LLC, 2008 WI App 133,
¶¶13-14, 313 Wis. 2d 592, 758 N.W.2d 144.

¶13 A property owner’s riparian zone is comprised of “the area that
extends from riparian land waterward to the line of navigation as determined by a
method that establishes riparian zone lines between adjacent riparian owners in a
manner that equitably apportions access to the line of navigation.” WIS. STAT.
§ 30.01(5r). The line of navigation, in turn, means “the depth of a navigable water
that is the greater of … [t]hree feet, as measured at summer low levels” or “[t]he
depth required to operate a boat on the navigable water.” Sec. 30.01(3c).

¶14 Wisconsin case law sets forth three general methods for determining
the boundaries between neighboring property owners’ riparian zones. Nosek v.
Stryker, 103 Wis. 2d 633, 635, 309 N.W.2d 868 (Ct. App. 1981). First, “where
the course of the shore approximates a straight line and the onshore property
division lines are at right angles with the shore, the boundaries are determined by
simply extending the onshore property division lines into the lake.” Id. This
method is typically referred to as the “extended lot line method.” See Borsellino
v. Kole, 168 Wis. 2d 611, 614, 484 N.W.2d 564 (Ct. App. 1992). Second, if “the
boundary lines on land are not at right angles with the shore but approach the
shore at obtuse or acute angles ... the division lines should be drawn in a straight
line at a right angle to the shoreline without respect to the onshore boundaries.”
Nosek, 103 Wis. 2d at 636. Our case law refers to this method as both the “right
angle method” and the “coterminous method.” See Borsellino, 168 Wis. 2d at
614; Manlick v. Loppnow, 2011 WI App 132, ¶15, 337 Wis. 2d 92, 804 N.W.2d

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No. 2018AP2227

712. Third, “where the shoreline is irregular ... the boundary line should be run in
such a way as to divide the total navigable waterfront in proportion to the length of
the actual shorelines of each owner taken according to the general trend of the
shore.” Nosek, 103 Wis. 2d at 637.

III. Application of the summary judgment methodology

¶15 The Boldebucks do not develop any argument that the DeSombres’
complaint failed to state a claim upon which relief could be granted. We therefore
proceed to the second and third steps of the summary judgment analysis and
consider: (1) whether the DeSombres made a prima facie case for summary
judgment on each of their claims; and (2) whether genuine issues of material fact
precluded the circuit court from granting the DeSombres summary judgment.

A. Prima facie case for summary judgment

¶16 The Boldebucks first argue that the DeSombres failed to make a
prima facie case for summary judgment on their claim for ownership of the pier
and wet boathouse. That claim sought a declaration of interest in real property,
pursuant to WIS. STAT. § 841.01(1). The Boldebucks contend that the DeSombres
“failed to present a prima facie case that the boathouse and pier are real property,”
and that, as a result, they are not entitled to relief under that statute.

¶17 The term “real property” means “[l]and and anything growing on,
attached to, or erected on it, excluding anything that may be severed without
injury to the land.” Property, BLACK’S LAW DICTIONARY (11th ed. 2019); see
also Stuart v. Weisflog’s Showroom Gallery, Inc., 2008 WI 86, ¶58, 311 Wis. 2d
492, 753 N.W.2d 448. Here, it is undisputed that the pier and wet boathouse are
“attached to” the bed of Otter Lake. It is further undisputed that the pier and

8
No. 2018AP2227

boathouse are permanent, rather than temporary or removable, structures.
Nonetheless, the Boldebucks argue that even permanent structures that are
“attached to” the bed of a navigable waterway cannot be owned as real property by
private individuals because title to the underlying land is held by the State,
pursuant to the public trust doctrine.

¶18 We reject this argument because the Boldebucks cite no legal
authority supporting their assertion that the public ownership of a lakebed means
that any structures affixed to it cannot qualify as real property. “Arguments
unsupported by references to legal authority will not be considered.” State v.
Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).

¶19 Furthermore, in support of their summary judgment motion, the
DeSombres offered the affidavit of Michael Muelver, the tax assessor for the town
where the parties’ properties are located. Muelver averred that the DeSombres
had paid real estate taxes on the wet boathouse since at least 2006, and he
submitted documentation supporting that averment. For purposes of Wisconsin’s
tax statutes, the term “real property” is defined to include “not only the land itself
but all buildings and improvements thereon, and all fixtures and rights and
privileges appertaining thereto.” WIS. STAT. § 70.03(1). “A benefit is appurtenant
if the right to enjoy that benefit is tied to the ownership of a particular parcel of
land.” Nature Conservancy of Wis., Inc. v. Altnau, 2008 WI App 115, ¶7, 313
Wis. 2d 382, 756 N.W.2d 641. The rights to place and use structures in aid of
navigation on the bed of a navigable lake are appurtenant to the ownership of
riparian property. See ABKA Ltd. P’ship, 255 Wis. 2d 486, ¶57; Anchor Point,
313 Wis. 2d 592, ¶¶13-14. We therefore conclude that such structures may be
owned by a private individual as real property, even though the underlying
lakebed is owned by the State.

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No. 2018AP2227

¶20 Nevertheless, we conclude for another reason that the DeSombres
failed to make a prima facie case for summary judgment on both of their claims.
Specifically, the DeSombres failed to introduce any evidence on summary
judgment showing the location of the pier and wet boathouse in relation to the
parties’ respective riparian zones. That determination appears to be material both
to whether the DeSombres own the pier and wet boathouse and to whether those
structures interfere with the Boldebucks’ riparian rights.4

¶21 As noted above, a party’s riparian zone extends from the shoreline
waterward to the line of navigation, and the boundaries between neighboring
owners’ riparian zones are typically determined using one of the three methods set
forth in our case law. See WIS. STAT. § 30.01(5r); Nosek, 103 Wis. 2d at 635.
The DeSombres submitted several survey maps in support of their summary
judgment motion. Each of those maps shows the pier (to which the wet boathouse
is attached) extending into Otter Lake from the corner of the DeSombres’ property
closest to the Boldebucks’ property line. However, none of the maps that the
DeSombres submitted on summary judgment purport to show the location of
either the line of navigation or the boundary between the parties’ riparian zones.
Thus, those maps do not provide any evidence as to whether the pier and wet
boathouse lie completely within the DeSombres’ riparian zone, whether they

4
The DeSombres do not develop any argument explaining why they should be deemed
to own any portions of the pier and wet boathouse that are located within the Boldebucks’
riparian zone. Moreover, they do not explain why the presence of the pier and wet boathouse
within the Boldebucks’ riparian zone would not interfere with the Boldebucks’ riparian rights as a
matter of law, given that the Boldebucks have the exclusive rights to place and use piers and other
structures in aid of navigation in their own riparian zone. See ABKA Ltd. P’ship v. DNR, 2002
WI 106, ¶57, 255 Wis. 2d 486, 648 N.W.2d 854; Anchor Point Condo. Owner’s Ass’n v. Fish
Tale Props., LLC, 2008 WI App 133, ¶¶13-14, 313 Wis. 2d 592, 758 N.W.2d 144. This opinion
should not be read, however, to foreclose the DeSombres from raising arguments regarding these
legal issues on remand.

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No. 2018AP2227

extend partially into the Boldebucks’ riparian zone, or to what extent the structures
extend beyond the line of navigation and therefore lie outside both the
DeSombres’ and the Boldebucks’ riparian zones.

¶22 The DeSombres also submitted an affidavit of surveyor Thomas
Boettcher in support of their summary judgment motion. However, neither
Boettcher’s affidavit nor its attachments provide any evidence as to the location of
the pier and wet boathouse in relation to the parties’ respective riparian zones.

¶23 The DeSombres also submitted an affidavit of Brian Hug, who was
employed as a caretaker for their property. Hug averred that Otter Lake is
approximately three feet deep at the two corners of the wet boathouse closest to
the shore and that “[i]n the area of the common boundary between the DeSombre
and Boldebuck properties the depth of the water reaches 3 feet at 30 feet from the
ordinary high water mark.” Hug’s affidavit therefore provides some evidence
regarding the location of the line of navigation. Notably, however, the line of
navigation is located at “the greater of … [t]hree feet, as measured at summer low
levels” or “[t]he depth required to operate a boat on the navigable water.” WIS.
STAT. § 30.01(3c) (emphasis added). The DeSombres did not introduce any
evidence as to whether Hug’s depth measurements were taken at summer low
levels, nor did they introduce evidence regarding the depth of water required to
operate a boat on Otter Lake.

¶24 In its summary judgment decision, the circuit court relied on an
“Eagle Landmark Survey submitted by [the DeSombres]” as showing the
boundary between the parties’ respective riparian zones. However, the
Eagle Landmark survey was not submitted by affidavit in support of the
DeSombres’ summary judgment motion. Instead, it was submitted as an

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No. 2018AP2227

attachment to the DeSombres’ complaint. “On summary judgment, the allegations
in the complaint are not evidence.” Oddsen v. Henry, 2016 WI App 30, ¶26, 368
Wis. 2d 318, 878 N.W.2d 720. We therefore agree with the Boldebucks that the
court could not rely on the Eagle Landmark survey when determining whether the
DeSombres had established a prima facie case for summary judgment.5

¶25 As the foregoing summary shows, the DeSombres failed to submit
sufficient evidence on summary judgment showing the location of the pier and wet
boathouse in relation to the parties’ respective riparian zones, including to the line
of navigation. Accordingly, the DeSombres failed to establish a prima facie case
for summary judgment on either of their claims, and the circuit court erred by
granting their summary judgment motion.

B. Existence of genuine issues of material fact

¶26 Moving on to the third step of the summary judgment analysis, we
conclude that even if the DeSombres did establish a prima facie case for summary
judgment, the evidentiary materials submitted by the Boldebucks were sufficient
to raise a genuine issue of material fact as to the location of the pier and wet
boathouse in relation to the parties’ respective riparian zones. In opposition to the

5
The situation would be different if the DeSombres’ complaint had contained an
allegation regarding the validity of the Eagle Landmark survey and if the Boldebucks had
admitted that allegation in their answer. However, that is not the case here, as the Boldebucks’
answer expressly denied the only allegation in the DeSombres’ complaint that pertained to the
Eagle Landmark survey.

In addition, as the circuit court acknowledged in its summary judgment decision, even the
Eagle Landmark survey shows a significant portion of the pier extending over the purported
boundary between the parties’ riparian zones onto the lakebed on the Boldebucks’ side of the line.
However, it is unclear from the Eagle Landmark survey whether that portion of the pier is past the
line of navigation and therefore outside the Boldebucks’ riparian zone.

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No. 2018AP2227

DeSombres’ summary judgment motion, the Boldebucks submitted an affidavit of
surveyor Gregory Maines, attached to which was a survey map that Maines had
prepared in June 2018. On that survey map, Maines depicted the location of the
boundary line between the parties’ riparian zones using both the extended lot line
method and the coterminous method.6

¶27 Using the boundary line created by extending the lot line established
by the parties’ legal descriptions, the Maines survey shows that nearly the entire
pier and boathouse are on the Boldebucks’ side of the line. Using the boundary
line established by the coterminous method, a small portion of the boathouse and a
substantial portion of the pier are on the Boldebucks’ side of the line.

¶28 The Maines survey does not purport to show the location of the line
of navigation. However, it does include a line labeled “30’ Offset From OHWM.”

6
The Maines survey actually depicts two sets of boundary lines between the parties’
riparian zones. One set assumes that the boundary between the parties’ lots is that established by
the legal descriptions in their deeds, which were based on a 2003 survey. Another set of
boundary lines assumes that the boundary between the parties’ lots is in a different location that
was established by the 1910 subdivision plat.

Maines averred that the 2003 survey was inconsistent with the 1910 subdivision plat and
was therefore “incorrect.” According to Maines, if the measurements from the 1910 subdivision
plat were used to determine the boundary line between the parties’ lots, the pier and boathouse
would extend into Otter Lake from the Boldebucks’ property, rather than from the DeSombres’
property.

The Boldebucks contend that Maines’ affidavit creates a genuine issue of material fact
because if the boundary line between the parties’ lots is actually located at the site established by
the 1910 subdivision plat, the pier and wet boathouse are attached to the Boldebucks’ property
and are located entirely within the Boldebucks’ riparian zone. We do not find this argument
persuasive. Regardless of where the boundary line may have been located in 1910, Blair—the
common grantor to both the DeSombres’ and the Boldebucks’ predecessors in title—was free to
subdivide her property in a manner that was inconsistent with the 1910 plat. Accordingly, the
legal descriptions in the DeSombres’ and the Boldebucks’ deeds—which are consistent with the
2003 survey—control the location of the common boundary between their lots. Any discrepancy
between the 1910 plat and the 2003 survey is therefore immaterial for purposes of this appeal.

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No. 2018AP2227

Assuming that line is consistent with the line of navigation,7 the Maines survey
shows that portions of the pier and boathouse are located within the Boldebucks’
riparian zone, regardless of whether the extended lot line method or the
coterminous method is used to determine the boundary between the parties’
riparian zones. Furthermore, Maines expressly averred in his affidavit that using
either method, portions of the pier and wet boathouse are within the Boldebucks’
riparian zone.

¶29 Maines’ affidavit and survey therefore show that there is a factual
dispute as to whether the pier and wet boathouse are located partially within the
Boldebucks’ riparian zone. This dispute appears to be material to determining
both the ownership of the pier and wet boathouse and whether those structures
interfere with the Boldebucks’ riparian rights. See supra n.4. As a result, the
circuit court erred by granting the DeSombres summary judgment on both of the
claims alleged in their complaint. We therefore reverse the court’s grant of
summary judgment in favor of the DeSombres and remand for further proceedings
on their claims.8

7
As noted above, Hug averred that in the vicinity of the boundary between the parties’
properties, Otter Lake reaches a depth of three feet “at 30 feet from the ordinary high water
mark.”
8
The Boldebucks raise several additional arguments in their appellate briefs. Given our
conclusion that the circuit court erred by granting the DeSombres summary judgment for the
reasons explained above, we need not address these additional issues. See Patrick Fur Farm,
Inc. v. United Vaccines, Inc., 2005 WI App 190, ¶8 n.1, 286 Wis. 2d 774, 703 N.W.2d 707
(court of appeals decides cases on the narrowest possible grounds).

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No. 2018AP2227

By the Court.—Judgment reversed and cause remanded for further
proceedings.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

15